In Re Custody of Townsend

Appeal from the Appellate Court for the Fourth District; heard
in that court on appeal from the Circuit Court of Macon County,
the Hon. John L. Davis, Judge, presiding.

MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:

___ N.E.2d ___

This appeal involves a decision by the circuit court of Macon County awarding custody of Christy Elizabeth Townsend, a minor, to her half-sister, Brenda Poling, over the claim of Christy's natural father, Gary Townsend. The appellate court reversed and remanded with directions that custody be granted to Gary Townsend. (90 Ill. App.3d 292.) We granted and consolidated for review separate petitions for leave to appeal filed by Brenda Poling and by special counsel appointed by the circuit court to represent the interests of Christy Townsend. 73 Ill.2d R. 315(a).

That art does imitate nature may be illustrated by the remarkable circumstances of this appeal. During a period of approximately two years, Gary Townsend and Dorothy Poling were involved in an extramarital relationship, and out of it a baby girl, who was named Christy Elizabeth Townsend, was born on October 14, 1976. In the latter part of this relationship, but prior to Christy's birth, it appears from the record that Dorothy had separated from her husband, George Poling, and was living by herself. Gary Townsend, during the relationship, was married and living in a single-family home in Shelbyville with his wife Judy and their son Alan, who was six years old in 1976. When Townsend was informed by Mrs. Poling that she was expecting his child, he asked his wife to agree not to contest a divorce proceeding. When she refused, Townsend left her and Alan and moved in with Dorothy. Soon after Dorothy's husband discovered that she was pregnant with Townsend's child, he filed for and obtained a divorce. After the divorce decree, Dorothy resumed the use of her maiden name, Dorothy Salmons, under which name she appears throughout the record of proceedings before us.

Townsend's and Salmons' living arrangement lasted for only three months, and with his wife assenting, he moved back into their family home in Shelbyville. Despite this separation from Dorothy, Gary continued to see her on a regular basis. As she was approaching the end of her pregnancy, Townsend received a phone call from her stating that she was in labor. He drove her to the hospital, where he acknowledged paternity and the child was named Christy Elizabeth Townsend. Upon leaving the hospital, Dorothy took custody of Christy and for a period of two years lived at what had been the Poling home with her 19-year-old daughter, Brenda Poling, who two months before Christy was born gave birth to an illegitimate baby girl, Courtney.

The record shows that Townsend, with his wife's knowledge, visited Dorothy and Christy two to three times a week during this period and that on many occasions he and Dorothy had relations. As Christy was nearing two years of age, the relationship of Townsend and Dorothy began to pale and his visits became infrequent. This appeared to have disturbed Dorothy, who up to this time had continued to press Townsend to obtain a divorce. On December 10, 1978, two months after Christy's second birthday, Dorothy and the child arrived unannounced at the Townsend residence. It was the first time that Gary's son, Alan, had seen Christy, though he had been previously told by his father about her and the circumstances surrounding her birth. After acrimonious words were exchanged between Townsend and Dorothy, he asked her and the child to leave. The next day he drove to Dorothy's house and accused her of trying to upset his wife and son, particularly his son. Later that day Dorothy went to the Townsend residence and shot and killed Judy Townsend. Upon Dorothy's arrest, Christy was cared for by Dorothy's other daughter, Brenda Poling, who, shortly after the shooting, had moved into her father's two-bedroom trailer home. Several months later, Dorothy Salmons was tried and convicted of the murder of Judy and on May 2, 1979, was sentenced to a term of 30 years.

Immediately after Dorothy's conviction, Townsend attempted to learn where Christy was living. Though it appears he knew that Brenda had custody of the child, he seemingly did not know that Brenda, along with Christy and Courtney, had moved in with her father, George Poling. When he asked the State's Attorney's office for assistance in locating his daughter, Townsend testified that he was told only that she was being well cared for. On May 30, 1979, he filed a petition in the circuit court of Macon County alleging that, given the circumstances of Dorothy Salmons' conviction, it was in Christy's best interests that he be granted care, custody and control of his child. Brenda Poling, upon receiving the petition, filed a petition for leave to intervene, which on June 28 was granted. In her petition she alleged that Townsend was unfit to care for Christy; that he failed to provide for her support; that he had abandoned interest in Christy's welfare; that he had not visited her for over six months; and that he never had custody, actual or legal, of Christy. She also filed a counterpetition for custody, claiming that since December 11, 1978, she had had sole custody of Christy; that they have formed a close relationship; and further that it was her mother's desire that she, Brenda, be granted custody of Christy. Various witnesses at the circuit court hearing testified to what they considered as desirable qualities and circumstances favoring each petitioner. Brenda's witnesses testified to a strong mother-daughter relationship between Brenda and Christy; that Christy was loved and treated well; and that when Brenda was at work as an assistant manager at a fastfood restaurant, Christy was taken care of by George Poling and other relatives. There was testimony that Christy and Brenda's daughter, Courtney, had formed a healthy sisterly relationship. The substance of this testimony was that Christy had become an integral member of a family unit in which she was loved, well cared for, and to which she had become strongly attached. Brenda also had maintained a relationship between Christy and her natural mother, Dorothy, by bringing her for weekly visits to the Dwight Correctional Center, where Dorothy was imprisoned.

Townsend's witnesses described him as a loving father who held a steady and well-paying job as a press operator with a substantial employer. He had been regularly attending church services in Shelbyville and participated in many church activities. Particular emphasis was placed upon the relationship between Townsend and his son Alan, which was described as excellent. Witnesses describe Alan as a normal, well-behaved and intelligent boy who loved and respected his father. It was testified that Alan had handled the death of his mother surprisingly well. Townsend stated that despite the fact that Christy's natural mother had killed his mother, Alan was looking forward to Christy's living with his father and him. There was testimony that the child was not being cared for properly by Brenda.

Considering this and other testimony, the trial judge, though finding that both Townsend and Brenda were fit to care for Christy, held that it was in her best interests that custody be awarded to Brenda.

The above is an outline of the testimony presented at the hearing. It has not been necessary to point out all of the testimony presented or to detail it because of our conclusion that the trial court did not apply and give appropriate consideration to the relevant standards in awarding custody of Christy to her half-sister over the claim of her natural father.

In child-custody disputes it is an accepted presumption that the right or interest of a natural parent in the care, custody and control of a child is superior to the claim of a third person. The presumption is not absolute and serves only as one of several factors used by courts> in resolving the ultimately controlling question of where the best interests of the child lie. (See People ex rel. Edwards v. Livingston (1969), 42 Ill.2d 201; Giacopelli v. Florence Crittenton Home (1959), 16 Ill.2d 556; Cormack v. Marshall (1904), 211 Ill. 519; Halstead v. Halstead (1966), 259 Iowa 526, 144 N.W.2d 861; Annot., 45 A.L.R.3d 216 (1972); Annot., 31 A.L.R.3d 1187 (1970).) A court need not find that the natural parent is unfit or has forfeited his custodial rights before awarding custody to another person if the best interests of the child will be served. (People ex rel. Edwards v. Livingston (1969), 42 Ill.2d 201, 209; Soldner v. Soldner (1979), 69 Ill. App.3d 97.) This standard or "guiding star" (Nye v. Nye (1952), 411 Ill. 408, 415) is a simple one designed to accommodate the often complex and unique circumstances of a particular case. The superior-right doctrine or presumption in favor of the natural parent, however, need not always be applied automatically in conjunction with the best-interests-of-the-child standard. For example, in a dissolution-of-marriage proceeding, the superior-right doctrine will not be applied where both the natural parents are seeking custody of their children. Instead each starts out on equal footing, with the court ultimately determining custody "in accordance with the best interest of the child" (Ill. Rev. Stat. 1979, ch. 40, par. 602(a)). Under the Adoption Act (Ill. Rev. Stat. 1979, ch. 40, par. 1501 et seq.), on the other hand, both the superior-right doctrine (see, e.g., In re Woods (1977), 54 Ill. App.3d 729) and the best-interests standard are applied (In re Abdullah (1981), 85 Ill.2d 300), though in this setting, a court, before permitting adoption by a third party, may not terminate all parental rights, including custody, unless the parent or parents consent or are found to be "unfit."

Here, of course, the proceeding does not involve a custody dispute incident to a divorce or an adoption proceeding, nor is the Juvenile Court Act applicable, which would require that the minor child be found to be delinquent, in need of supervision, or neglected or dependent before the child could be taken from the custody of its parents and made a ward of the State. See Ill. Rev. Stat. 1979, ch. 37, par. 702-1.

The right and correlative responsibility of a parent to care for his or her child is fundamental and as ancient as mankind. This basic human right and the superior-right doctrine find legislative expression in the Probate Act of 1975 (Ill. Rev. Stat. 1979, ch. 110 1/2, par. 1-1 et seq.). Under article XI, entitled "Minors and Incompetents," section 11-7 provides:

"If both parents of a minor are living and are competent to transact their own business and are fit persons, they are entitled to the custody of the person of the minor and the direction of his education. If one parent is dead and the surviving parent is competent to transact his own business and is a fit person, he is similarly entitled. The parents have equal powers, rights and duties concerning the minor. If the parents live apart, the court for good reason may award the ...

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